Divorce

The Difference between Legal and Physical Custody in Michigan

July 19, 2021 By Laurie Schmitt

If you’re going through a divorce, or in the midst of a custody battle, it’s important to understand what the custody terms means in Michigan. In Michigan, the courts recognize two types of custody: physical and legal.

PHYSICAL CUSTODY:
Physical custody determines where the children will live and their living arrangements. Custody can be sole or joint. Sole physical custody means physical custody is given to only one parent. The child will primarily reside with that parent, and that parent provides most of the day to day care for the child. Joint physical custody means the parents share custody.

LEGAL CUSTODY:
Legal custody determines who will make important decisions for the children. If sole legal custody is awarded, only one parent has the authority to make these decisions. However, if joint legal custody is awarded, both parties will be involved in making important legal decisions for the child such as where they go to school, what religion they are, if and what extra-curricular activities the child will participate in, and major medical decisions. Joint legal does not depend on the amount of time that the child spends with each parent. No matter what the physical custody is, parents can share joint legal custody of the child.

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Examples of what joint legal custody is as follows:

Each party will foster, encourage and support the relationship between the minor child and the other parent.
The parties will consult together concerning major decisions involving the health, education, religion and welfare of the minor child. Neither party shall enroll the child in a school without agreement of the other or an order of the court.
The parties will both use their best efforts to ensure consistency in matters affecting the upbringing of the minor child and to work together to promote the best interests of the minor child.
Each parent will promptly advise the other of any illness, emergency, or other significant events concerning the minor child (including school or health problems) of which the parent becomes aware.
Each parent will be entitled to complete access to the minor child’s school, medical, psychological, religious and other records.
The parties shall each be entitled to be informed of all parent/teacher conferences and all other activities (including sports) and/or school programs in which the child are involved and parents are invited to attend.
The parties shall each be entitled to copies of the minor child’s report cards, medical records and current school photographs.
Each party shall keep the other party generally informed of his or her whereabouts in the event of an emergency, including their present address, personal telephone number, and any other emergency contact number.
Each party shall decide all routine matters concerning the minor child during such time that he or she has physical custody of or parenting time with the minor child. The parties will each use their best efforts to provide consistency for the child in connection with such routine matters.
Each party shall have the right to make routine emergency decisions regarding the minor child when the child are with him or her.

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DETERMINING THE CHILD’S BEST INTEREST: It’s always best when parents can agree on custody. However, when parents are unable to agree on custody, then the court must decide on custody and parenting time by reviewing the “best interest factors of the child”.

This legal test requires the court to consider these 12 factors:

The love, affection and other emotional ties existing between the parties involved and the child.
The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
The permanence, as a family unit, of the existing or proposed custodial home or homes.
The moral fitness of the parties involved.
The mental and physical health of the parties involved.
The home, school, and community record of the child.
The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
Any other factor considered by the court to be relevant to a particular child. Schmitt Law, PLLC knows that your first priority is your children, and will find creative solutions that fits your specific situation.

Schmitt Law, PLLC can advise and represent parents throughout the entire custody process, offering skilled advocacy for parents, while being empathetic to the challenges involved in determining child custody. Laurie Schmitt of Schmitt Law, PLLC is a West Michigan family law attorney specializing in collaborative divorce as well as separation, divorce, child custody and support, paternity, and other family law litigation. She is licensed by Michigan State Bar and the U.S. District Court for the Western District of Michigan, and has extensive advanced training in divorce mediation and collaborative divorce. Contact Laurie at (616) 608-4634 for a confidential consultation.

Terms and Definitions

July 19, 2021 By Laurie Schmitt

I receive many calls from potential clients that have been served with a Complaint for Divorce, or are wishing to file for divorce. For parties who have never been through the legal system, the terminology used in a divorce action can often be confusing and overwhelming. Below are basic legal terms associated with a divorce action.

PLAINTIFF: The Plaintiff is the party initiating the action (filing spouse).

DEFENDANT: The Defendant is the party whom the Complaint is filed against (the non-filing spouse).

SUMMONS: The Summons is the document that used to start an action. The Summons notifies the person named that an action has been filed against him. The Summons is issued by the Clerk of the Court in the county in which the Plaintiff is filing the action. The Summons indicates the name and address of the court, the names and addresses of the parties, and the name of Plaintiff’s attorney (if any).

SERVICE OF PROCESS: The service of the Summons and Complaint must be hand delivered to the Defendant by a third party (such as a process server), or through the U.S. Mail (certified mail/restricted delivery). Once service has been complete, an Affidavit of Service must be filed with the court. The Affidavit of Service indicates the date, time, and location of service on the Defendant. If the Defendant was served via U.S. Mail, the green card must be filed with the court.

COMPLAINT FOR DIVORCE: A Complaint for Divorce is the document that initiates the divorce proceeding. The Complaint for Divorce identifies the parties, states the claims against the Defendant, and petitions the Court to grant the divorce. If applicable, a Complaint for Divorce requests the Court to make a determination regarding custody, parenting time, child support, spousal support, and division of the marital property. The Complaint for Divorce must be filed with the Court, and served with the Summons on the Defendant. The Defendant will then have 21 days to respond the Complaint for Divorce.

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RECONCILATION AND DISMISSAL: Not all divorce cases filed result in a divorce. If the parties resolve their differences and wish to terminate the divorce action, an order of dismissal must be entered by the court. Once this Order has been, entered, the case is dismissed. In the future should either party wish to move forward with another divorce action, they must file a new case with the court.

LEGAL GROUNDS FOR DIVORCE: Michigan only provides for no-fault divorce. The Plaintiff will have to state in their Complaint for Divorce, and at the final hearing that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.

WAIT PERIOD – BEFORE THE DIVORCE CAN BE GRANTED: If there are no minor children of the marriage, there is a two month wait period. If the parties have minor children of the marriage, there is a six month wait period.

Ten Things “Not to Do Next” in Your Divorce

July 19, 2021 By Laurie Schmitt

You’ve heard it a million times that going through a divorce is difficult. As a West Michigan Divorce Attorney, I can state that divorce is full of challenging moments. However, with some common sense, you can avoid some common divorce pitfalls by following a few basic rules:

Don’t start a new relationship. Well, Duh! Need I say more. Respect the current relationship and see it to the end. Don’t confuse your children with introductions to new “friends” while in the midst of the divorce. Judges don’t appreciate it, as it shows a lack of good judgment. And it will only fuel the fire in the divorce proceeding. If this is a person you intend to have a serious relationship with at the conclusion of the divorce, then they will understand that this is not the appropriate time to be introduced to the children.
Couch surfing sucks! Don’t move out of the marital home without a plan. Changes will happen as you go through your divorce, so be prepared to deal with life as it comes at you. The biggest change clients struggle with is adapting to living on a now single income. During this turbulent time, you need to provide stability for your children. That means you need to provide an appropriate home for them while going through the divorce. So, don’t jump the gun and move out of the marital home without a solid financial plan, and a safe place for your children to visit or live.
Don’t share the details of your divorce with your children. Divorce doesn’t mean hide the fact that you are going through a divorce from your children. But there are certain facts that should remain between adults. Allow your children to be children for as long as possible. Remember, the changes taking place in your life are also taking place in theirs. It’s hard enough for children to cope with major life changes. They certainly shouldn’t be burdened with adult conversation and information about the divorce. Adult conversation is just that!

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Your children are not the Pony Express. Don’t use your children as a go between to relay messages to your spouse. If you are unable to speak to your spouse civilly, then hire an attorney to assist you. It will be their job to communicate with your spouse or spouse’s attorney during the divorce. But, don’t use your children as a form of communication between each other.
It wasn’t immaculate conception! Don’t think that because you are divorcing, you are the only parent. The children have two parents – and always will. Don’t force them to choose between their parents. They love both of you. So, avoid putting them in the middle of the hostility and anger.
Your children are not Olympic gold medal winners! Don’t use extra-curricular activities to monopolize your children’s free time. If they didn’t participate in the activity while you were married, they most likely don’t need to participate in the activity while the divorce is pending. Now is not the time to enroll them in an excessive amount of activities, especially if these activities take place on your spouse’s parenting time. If you can’t agree on extra-curricular activities, the rule should be that parenting time with the other parent is far more important than participation in an extra-curricular activity.
It’s not your way or the highway! We all know divorce is hard on children. It is hard enough for the children to acclimate to living in two households. Respect that there are now two households for the children, with two sets of rules. Although consistency is ideal, you can’t expect your soon to be ex-spouse to share in your beliefs and rules regarding discipline.
Avoid purchasing big ticket items while going through your divorce. It’s not the time to buy a new car or home. Wait until the dust settles, and you’ve reached a settlement agreement with your spouse. Your spouse could claim that you used marital money to finance your new car or home. It then may become a marital asset to be divided in the divorce.
Pay your bills. You need to continue to meet your obligations. If it is a joint debt, you remain obligated. There is life after divorce. And the consequences of your decisions during your divorce will follow you afterwards. Some people believe that getting a divorce means walking away from marital debt and starting over. No! You still have responsibilities – meet them.
Your bartender is not your counselor! Use discretion when talking about your divorce. Don’t over-share all the details of your divorce with your friends and colleagues. Refrain from making every conversation about the trials and tribulations of your divorce. Some things are better left private. And, after the divorce, you want your friends to be standing by you.

Parental Child Abduction

July 19, 2021 By Laurie Schmitt

Are you going through a divorce and have imminent concerns that your spouse will remove the children from the United States, and refuse to return them?

If so, there are steps that you can take to prevent your spouse removing the children from the United States.

The first action is to have your family law attorney obtain an order from the court preventing removal of the children from the United States. Once you have obtained this order, you next should contact the U.S. Department of State and enroll your children in the Children’s Passport Issuance Alert Program (CPIAP).

CPIAP allows parents who have “imminent concerns” about parental abduction to enroll their U.S. citizen children in CPIAP. CPIAP prevents the other parent from applying for, and obtaining a passport for the children without consent from the other parent. Note, this program is only for children that are U.S. citizens.

For details regarding this program see this site: Children’s Passport Issuance Program

I Want Custody of My Children, but I Love Facebook: Why you should ‘unfriend’ Facebook during a custody case

July 19, 2021 By Laurie Schmitt

Why you should ‘unfriend’ Facebook during your child custody case

Although my West Michigan family law practice involves meeting with clients about a range of issues, child custody issues are often the most challenging for my clients. The toll child custody takes on the individual parties’ emotions, children, and finances is the number one reason why I encourage people to learn more about Collaborative Divorce before things become too heated.

Child custody cases can be gut wrenching for all of the parties involved, depending on the nature of the case. Unfortunately, it is the emotional nature of child custody issues that makes my clients’ misuse of social media one of my most challenging issues as an attorney.

I get it. It feels good—even if it’s just for a moment— to blow off steam with a piping hot Facebook post (that doesn’t actually mention your soon-to-be-ex by name, so it’s harmless, right?). And all of those Facebook ‘likes’ on our child custody issue frustrations and woes can feel very validating at a time when we probably need validation from our friends and family the most.

However, if you stopped on this post because you think you are about to be involved in, are in the middle of, or are even nearing the end of a child custody issue, please DO NOT update your Facebook status until you have finished reading this.

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Here are my top seven recommendations I make to my own clients who are going through a child custody dispute:

NEVER slam your ex on social media.
In fact, I instruct all of my clients to refrain from any and all Facebook updating, commenting, liking, or sharing that can be seen as making a comment on the case or disparaging the other party. Believe it or not, as good as the short-term adrenaline rush might feel to post your true feelings about the case on Facebook for the world, and especially your ex, to see, that’s all that it really does is heat up an already difficult situation.
Better yet, stay off Facebook until your case is complete. Don’t use Facebook to share your life with the world while your case (and your child’s and your future) is pending with the court. It’s simple: if you stay off Facebook, nothing you say, innocent or otherwise, can be used against you, because it’s just not there to be found.
If you decide to stay active on social media during your child custody dispute, remember that your social media photos are worth more than a thousand words. Never post pictures of themselves in bars, drinking alcohol, at parties, and definitely NEVER using illegal substances. What you may see as innocent pictures of a fun night out with friends, are now being shown in court as a way to support your ex’s effort to depict you as the worst parent in the world.
Remember: If it is on your Facebook account, your judge will see it.
Social media privacy is an oxymoron. If you think none of this applies to you because you are smart and have your social media accounts set to private, think again. You would be amazed at how many of my clients’ “friends” have been willing to provide their opposing party with access to their “private” social media posts and photos.
But if your account is not set to private, your ex’s attorney IS regularly reviewing your activity. I know in my own practice I have looked at numerous Facebook accounts and have found photos including drugs and drug paraphernalia laying about the house, photos of people who are visibly intoxicated, photos that undoubtedly show an adulterous relationship, and read volumes of derogatory comments about the other party that go directly to the comment author’s own fitness as a parent.

The real take home point, in case you have missed it, is that when you are fighting for your children, stay away from Facebook and other social media while your child custody case is ongoing. What you post can be twisted and turned against you. Getting through a heated custody case is hard enough. There is no reason to make your attorney’s job as your advocate harder because of a ridiculous Facebook post.

Before you post that comment or photo on Facebook, remember your end goal: custody of your children. Facebook will be there for you when it’s all over.

I have filed for a Divorce, now what happens with the Marital Home?

July 19, 2021 By Laurie Schmitt

In any divorce situation, one of the most major and complex elements to be dealt with is the division of marital assets. As the marital home is typically the largest asset of divorcing couples, it’s important to know your options.

The most common dispositions of the marital home is that it will be sold, or one party retains it. There are other options. But, for the purpose of this blog, these are the two options that will be discussed.

SELLING THE MARITAL HOME: Often during a divorce, neither party is able to retain the marital home, and the home must be sold. It may be that neither party can afford the mortgage on their own, or neither party can afford to refinance to buy the other party out of their equity in the marital home. If you and your spouse have decided that selling the marital home is necessary, the first thing you must do is to agree on a date to list the marital home. Additionally, you must agree on a realtor, a list price, and eventually a sale price. Typically, the proceeds or deficiency would be divided equally between the parties. There are many exceptions to this rule, such as one party having special equity in the marital home, or one party receiving more than one half of the equity for various reasons.

ONE PARTY RETAINS THE MARITAL HOME: If one party will be retaining the marital home, then an appraisal should be completed by a licensed appraiser. That appraisal will give the parties and their attorneys a basis in which to appropriately value and make a division of the equity. Equity is determined by taking the current appraised value and subtracting the current outstanding loan(s) on the property, leaving you with the equity in the home.

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If one party is retaining the marital home, they will be required to “buy out” the other party’s one half of the equity. This can be accomplished by either refinancing the marital home, or providing the equity from another source in the assets of the marriage, such as retirement account. As a very simple example: Party “A” wishes to retain the marital home, and has a retirement account worth $100,000. Each party is to receive $50,000 of the retirement account. The equity in the marital home is $50,000. Party “B” is to receive $50,000 for their share in the retirement account, and $25,000 for the equity in the home. Party “A” would then pay party “B” $75,000 from their retirement account for payment of the retirement account and equity in the marital home. Of course, this scenario requires a retirement account balance large enough to accommodate payment of the equity, after the division of the retirement account.

Yet, another “buy out” option of the other party’s equity in the marital home would be to make payment of the equity over time. This would require the parties to agree to post-divorce installment payments, or a lump sum payment at a specific time.

As the decision regarding the marital home is a complex subject, it should be fully addressed with a qualified family law attorney.

Laurie Schmitt of Schmitt Law, PLLC is a West Michigan family law attorney specializing in collaborative divorce as well as separation, divorce, child custody and support, paternity, and other family law litigation. She is licensed by Michigan State Bar and the U.S. District Court for the Western District of Michigan, and has extensive advanced training in divorce mediation and collaborative divorce. Contact Laurie at (616) 608-4634 for a confidential consultation.

How to Prepare for the Initial Consultation with a Divorce Attorney

July 19, 2021 By Laurie Schmitt

You’ve made the decision to seek advice from a divorce attorney. You’ve made the appointment. What preparation should you take to use your time efficiently at the consultation? The initial consultation various from attorney to attorney. However, most divorce consultations include a discussion of the divorce process, custody, parenting time, financial matters, and attorneys fees and costs.

So how should you prepare for this consultation? There are many steps you can take to make sure your first meeting is as productive and useful as possible.

Prepare a list of questions. Many clients are unsure what to ask, or are so overwhelmed they simply forget what they wanted to ask. The interview is much more effective if it can be tailored to your specific needs. That way, you are assured to leave the interview with the information you need. What are your concerns? Do you worry about how you will support the children and pay the bills during the divorce? Is your spouse telling you that you must move out of the marital home before the completion of the divorce?
Compile your financial data to include your assets and liabilities. Be prepared for financial questions from your divorce attorney. Come to the first meeting prepared to tell the attorney what you own, and what you owe. Arrive with copies of your available financial records to include tax returns, mortgage statements, credit card statements, retirement account statements, paystubs, business records, and any other document relating to your financial situation. Do you know how much is in your spouse’s retirement account, or what your mortgage balance is? Do you know the names and balances of your credit cards?
Prepare a list of background information. Your list should contain names, addresses, social security numbers, and employer information for both you and your spouse, the names and birth dates of your children, and the name of the medical insurance provider for you and your children. Do you know the name and policy number of the children’s medical provider? Do you know the children’s social security numbers?
Prepare a goals list. Outline what you want at the conclusion of the divorce proceeding. It may be impossible to know your exact expectations prior to consulting at attorney. Hence, this list may not be all-inclusive. However, it is important to convey to the attorney your current expectations regarding custody, parenting time, and the division of the marital assets. Are you seeking custody of the minor children? Do you want to keep the marital home?
Discuss a budget with your attorney. Every divorce is unique. However, a candid conversation with the attorney about fees and costs is necessary Your interview should include a discussion about the attorney’s hourly fee, their retainer fee, and any costs related to your case. To avoid disappointment, go into the relationship with a full understanding of your financial responsibilities. What is the attorney’s retainer fee? Will you be responsible to pay for travel costs, copies and postage?

How to Control the Cost of your Legal Fees

July 19, 2021 By Laurie Schmitt

Every client has concerns about what their case will cost. Like all other professionals, attorneys do charge for their time. However, there are ways you can work with your attorney to control your legal fees.

You can reduce your legal fees by doing your own legwork by providing your attorney with complete financial information regarding your assets and debts. Gather documentation for your bank accounts, retirement accounts, credit cards, stocks, bonds, deeds, and titles. This saves the attorney from having to formally request the information from the other party or other attorney. There are times when you simply will not have access to the other party’s information. However, if the attorney can limit the requests to the other party, you save money.

Communication with your attorney is key in effectively working for you. An e-mail is an inexpensive way of keeping your attorney informed with necessary information about your case. An e-mail gives the attorney a chance to think about your concern before they communicate with you, and often takes less time than a telephone call. And frequent telephone calls add up quickly.

In most cases, you are billed for all time the attorney spends working on your case. You will save money by addressing simple issues such as working with your spouse to divide personal property or deciding who will pay for the household bills through the divorce. Of course, there will be times you simply are unable to negotiate with your spouse, or come to an agreement. But, making the attempt to do so prior to attorney intervention will prevent unnecessary attorneys fees.

Together, you and your attorney should discuss your unique situation, and find other ways to work efficiently. If you and your attorney are mindful of what needs to be completed in your case, and consider the cost and benefits of each task, your attorney can provide you with the best legal representation with the resources available to them.

Divorce

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